Citation Nr: 18155775 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-27 128 DATE: December 6, 2018 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for an unspecified dental disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left shoulder disability. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right shoulder disability. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a back disability. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a left knee disability. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right ankle disability. 6. The Veteran’s retinopathy is secondary to diabetes mellitus; service connection is not currently in effect for diabetes mellitus; astigmatism and presbyopia are refractive errors which have not been shown to have been subjected to superimposed disease or injury in service. 7. The Veteran’s dental disability is not considered a disability for Department of Veterans Affairs (VA) compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 4.9. 7. The criteria for service connection for a dental disability for purposes of compensation, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1997 to September 2011. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). 1. Entitlement to service connection for a left shoulder disability, a right shoulder disability, a back disability, a left knee disability, and a right ankle disability The Veteran contends that he has disabilities of the left shoulder, right shoulder, back, left knee, and right ankle related to his active duty service. The Veteran underwent VA examination in February 2012 at which time he reported that his bilateral shoulder condition was the result of accumulative military career and noted that ruck marches, push-ups, and log rolls caused shoulder pain. The Veteran reported that his back condition was also the accumulation of being in the military. He specifically noted that he was repelling at Fort Pickett and hit the ground hard, that a medic on site saw him and put ice on his back, and that he was returned to duty. Additionally, the Veteran reported that his left knee condition started during a ruck march for physical training around 1999. He was running and stepped on a piece of loose pavement, he stumbled but caught himself, and he recovered. The Veteran stated that in 2002, he was having a physical and the provider told him to squat; the maneuver caused a popping sound. The Veteran stated that while leading a patrol, he stepped in a hole during training and injured his right ankle. The Veteran reported that he went to sick call the same day and was provided an ACE bandage and returned to duty. The Veteran reported that no x-rays were taken; and he did not think that any x-rays of the ankle was taken for the remainder of his military career. The Veteran denied that there were restrictions to his training or military duties due to any shoulder, back, left knee, or right ankle disorders. He also denied receiving current care for either shoulder, back, left knee, or right ankle. The Board concludes that the Veteran does not have a diagnosis of a current chronic shoulder, back, left knee, or right ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In conjunction with his VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received in January 2012, the Veteran identified a right ankle disability which began in March 1997, a left knee disability which began in June 1999, a back condition, and a bilateral shoulder condition. In addition, the Veteran indicated that he had been receiving treatment at the VA Medical Center (VAMC) in Salem. In July 2013, the Veteran indicated that he had been treated at the Salem VAMC from 2011 to the present for his right ankle, back, and left knee problems. A May 2015 Deferred Rating Decision notes that a review of Compensation and Pension Record Interchange (CAPRI) showed no treatment at Salem VAMC or any other VAMC for the period from 2011 to the present. The only records shown were VA examinations in February 2012 at the Salem VAMC. The Veteran has not submitted any medical evidence of a current chronic disability of the shoulders, back, left knee, or right ankle. The Veteran underwent VA examination in February 2012 at which time the examiner found that the Veteran had a normal examination with respect to the shoulders, back, left knee, and right ankle; that there were no diagnoses warranted as there was no pathological abnormalities on clinical examination. Thus, there is no diagnosis of a current chronic shoulder disorder, back disorder, left knee disorder, or right ankle disorder. The Board has considered the evidence in light of the case of Saunders v. Wilkie in which the United States Court of Appeals for the Federal Circuit addressed “the legal issue [of] whether pain without an accompanying pathology can constitute a “disability” under [38 U.S.C.] § 1110.” 886 F.3d 1356 (Fed. Cir. 2018). The Federal Circuit held that the Veterans Court erred “as a matter of law in holding that pain alone, without an accompanying diagnosis or identifiable condition, cannot constitute a ‘disability’ under [38 U.S.C.] § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment.” Id, at 1361. The Federal Circuit “conclude[d] that pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Saunders v. Wilkie, 2017-1466, slip op. at 13 (Fed. Cir. 2018). Further, the Federal Circuit held that “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that [] pain reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 2017-1466, slip op. at 21 (Fed. Cir. Apr. 3, 2018). In this case, there is no credible persuasive evidence that the Veteran suffers from a right shoulder disorder, left shoulder disorder, back disorder, left knee disorder, or right ankle disorder productive of chronic functional impairment. The February 2012 VA examiner specifically noted that there was no functional loss or functional impairment of either shoulder, back, left knee, or right ankle. In addition, the February 2012 VA examiner specifically found that the Veteran’s left knee, and right ankle diagnoses did not impact his ability to work. See February 2012, Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). To the extent that the Veteran believes that he has a current shoulder, back, left knee, or right ankle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires [specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing]. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of competent evidence that a current disability exists which was caused by or aggravated by the Veteran’s military service, the criteria for establishing service connection for a shoulder, back, left knee, or right ankle disability have not been established. 38 C.F.R. § 3.303. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left shoulder disability, a right shoulder disability, a back disability, a left knee disability, and a right ankle disability; and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 2. Entitlement to service connection for a bilateral eye disability The Veteran contends that his eye disability is related to his active service. At the February 2012 VA examination, he reported that he had a bleed in his right retina and noted that he had occasionally blurry and watery eyes. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303 (c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The only post-service medical evidence of record is a February 6, 2012, VA eye examination which indicates that the Veteran has current diagnoses of myopic astigmatism and early presbyopia. Astigmatism and presbyopia are refractive errors of the eyes; and refractive errors of the eyes are not considered diseases or injuries within the meaning of applicable legislation governing the awards of compensation benefits. See 38 C.F.R. §§ 3.303 (c), 4.9; McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection may be granted in limited circumstances for superimposed disability on a refractive error or developmental defect. The Board finds, however, that there is no evidence of an acute eye injury or superimposed disease shown in service. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). Accordingly, because refractive errors are excluded from the definition of a disease for which service connection may be granted, the claim for service connection for the Veteran’s refractive errors must be denied as a matter of law. 38 C.F.R. §§ 3.303 (c), 4.9. In addition, although the Veteran’s service treatment records indicate that in August 2007, he was diagnosed as having early nonproliferative diabetic retinopathy (NPDR), the Board concludes that the Veteran does not have a current diagnosis of diabetic retinopathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The only post-service medical evidence of record is a February 6, 2012, VA eye examination which indicates that the Veteran has a diagnosis of diabetes mellitus without retinopathy and notes that from his history, it appeared that the Veteran had some retinal hemorrhaging of the right eye the year prior likely from diabetic changes but no current hemorrhage noted. See February 2012, Disability Benefits Questionnaire (DBQ) Eye Conditions Examination. To the extent that the Veteran believes that he has diabetic retinopathy, he is not competent to provide a diagnosis in this case. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of competent evidence that the Veteran has a current diagnosis of diabetic retinopathy, the criteria for establishing service connection for diabetic retinopathy have not been established. 38 C.F.R. § 3.303. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a bilateral eye disability, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. 3. Entitlement to service connection for an unspecified dental disability The Veteran contends that in 1999 while eating in the dining hall, he bit into a meatball and hit a piece of gristle or bone causing tooth #30 to fracture. With regard to a dental disability, pursuant to 38 U.S.C. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not to the loss of alveolar process as the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Initially, the Board notes that the Veteran has not contended, nor does the evidence indicate, that any missing teeth or bone and tissue loss constitutes loss of substance of body of the maxilla or the mandible due to trauma or disease such as osteomyelitis. See 38 C.F.R. § 4.150 (noting that current legal authority only allows compensation for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.). On VA examination in February 2012, the Veteran was missing teeth numbered 1 and 14; teeth numbered 2, 28, and 30 had been endodontically treated; teeth numbered 3, 6, 11, 15, 17, 19, 19, 20, 21, 30, 31, 32 had been restored; and x-rays showed maxilla, mandible, ramus, condyles, and coronoid progresses appeared within normal limits. Periodontal examination showed gingivitis and generalized adult periodontitis. The Board acknowledges the Veteran’s contentions; unfortunately, service connection for compensation purposes may not be awarded for disorders other than those listed in the Schedule of Ratings for dental and oral conditions. To the extent that the Veteran believes that he has a dental disability related to his active service, he is not competent to provide an etiology in this case. Jandreau, 492 F.3d at 1377. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, as this issue is medically complex, as it requires specialized medical knowledge, he is not competent to determine that these symptoms are somehow related to his active service or any service-connected disabilities,. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a dental disability for compensation purposes, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel